Secrecy over international relations trumps transparency of EU-Turkey deal

Secrecy over international relations trumps transparency of EU-Turkey deal

Madrid, 8 February 2018 – The General Court of the European Union hasruled that the public does not have the right to access the European Commission’s legal advice on the March 2016 EU-Turkey agreement on returning migrants and asylum seekers from Greece to Turkey.

The Commission had applied a series of exceptions to documents requested by Access Info Europe, documents that the court process revealed included late night emails between high level public officials discussing legal and political aspects of the controversial deal.

The judgments shed further light on the scope and application by the EU Commission of the international relations exception contained in the EU Transparency Regulation, a provision for which there is no public interest override. In this case, access was refused because of the risk of harming international relations with Turkey.

“The deference to secrecy of international relations is of great concern on an issue like this where human rights are at risk,” stated Luisa Izuzquiza, Communications Officer at Access Info, who submitted the originalrequests.

“International agreements such as the EU-Turkey deal have a huge impact in the lives of millions of people, especially those of refugees that seek shelter in Europe – greater transparency is crucial to ensure their rights are being respected,” added Izuzquiza.

The Court ruling and the court proceedings do, however, reveal new information as it contains a detailed description of each of the documents – something that the Commission had failed to do – hence unveiling the last-minute, behind-the-scenes, nature of the decision making that led to the EU-Turkey deal.

In particular, the judgments show that the Commission consulted with its Legal Service on aspects of the EU-Turkey deal such as the consideration of Turkey as a “safe country”, appeals procedures in Greece to deal with asylum applications, aspects of Greek legislation, or return and resettlement of refugees. Documents also contain legal queries from the Netherlands, which at the time were in charge of the Presidency of the Council.

“Thanks to Access Info’s access to documents requests and legal challenge, information about how this decision was taken, who were the actors involved, and most importantly, the types of legal concerns the Commission had while negotiating deal, was unveiled,” said Helen Darbishire, Executive Director of Access Info Europe.

Access Info noted that the two judgements issued on 7 February 2016 also confirmed the Commission’s application of two other exceptions: protection of court proceedings, and protection of legal advice, with only a minimal win for Access Info Europe to a couple of sentences from two of the documents.

“The judgments are important in that they set out with precision the scope of the EU transparency rules and the criteria to be met by EU institutions when refusing access to documents.Where the judgments are novel is that the Court ruled that the protection of legal advice was applicable in this case due to the particular nature of the documents and the very particular circumstances of the case,” commented Onno Brouwer, the lawyer representing Access Info.

Access Info Europe brought this case against the EU Commission after having submitted two access to documents requests asking for the Commission’s own evaluation of the legality of both EU-Turkey statements: the 8 March 2016 statement, and the statement known as the EU-Turkey deal, of the 18 March. The Commission refused access to all documents except selected paragraphs of one; a decision Access Info challenged before the General Court in December 2016.